The Advisory: Volume 10, Issue 2, April 2012

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Who May Act as a Barrister in an Alberta court?

By Molly Naber-Sykes, Counsel, Law Society of Alberta

Section 106 of the Legal Profession Act states no person shall act as a barrister or as a solicitor in any court of civil or criminal jurisdiction unless the person is an active member of the Law Society. This provision ensures barristers are competent to appear in our courts, bound by the Code of Conduct, have liability insurance, pay into the Assurance Fund, and are subject to discipline by the Law Society.

The cost of legal representation and difficulty in accessing representation has resulted in our courts frequently being asked to permit a non-member to advocate before them. The Law Society recently intervened in two cases, one criminal and one civil, in which non-members sought to act as barristers in an Alberta court. The Court of Appeal confirmed an advocate must be on the rolls of the Alberta society or a reciprocating society in order to act as a barrister in an Alberta court.

Please become familiar with these decisions so you are prepared to respond to any application by a non-member to appear as an advocate in our courts.

R. v. Potts

Malcolm Potts, a treaty aboriginal, was convicted on 11 charges under the Wildlife Act for activities conducted on a reserve. He filed a Notice of Appeal and lengthy Notice of Constitutional Question. He sought to be represented on the appeal by Dr. John Murdoch, a non-lawyer, who would act pro bono.

The Crown applied for advice and directions to preclude Dr. Murdoch’s representation on the appeal. The Law Society intervened, taking the same position as the Crown that Dr. Murdoch’s proposed representation was barred by the Legal Profession Act. Justice Wilkins refused Mr. Potts’ request to be represented on appeal by Dr. Murdoch:

There can be no question that Potts and Dr. Murdoch seek to obtain the right of audience and right of representation before this Court of Queen’s Bench that would normally be accorded to a barrister of the Law Society and is prohibited by the LPA… (paragraph 33)

Justice Wilkins’ reasons are reported at 2011 ABQB 816. Please note section 800(2) of the Criminal Code expressly permits representation by an agent at the trial of a summary conviction offence.

Lameman v. Alberta

Lameman and the Beaver Lake Cree Nation sued the Province of Alberta and the Attorney General of Canada to enforce their treaty rights to hunt, trap and fish. Lameman is represented by Woodward and Company, a British Columbia law firm, some of whose lawyers are called in Alberta and others of whom appear in Alberta under the Mobility Agreement.

The plaintiffs sought to accept an offer by six British barristers to represent them pro bono in this action. The barristers are not members of the Law Society or any reciprocating Canadian law society. The barristers said they would act Who May Act as a Barrister in an Alberta court? By Molly Naber-Sykes, Counsel, Law Society of Alberta pro bono and would be supervised by Woodward and Company.

The Law Society intervened in Lameman’s application by consent of all parties. The Law Society took no issue with the barristers’ ability to provide research and writing assistance to Woodward and Company as outlined in Chapter 2, Rule 4 of the Code of Conduct.

The Law Society however pointed out that Sections 102 and 106 of the Legal Profession Act prevent the barristers from appearing as advocates, examining witnesses and making submissions on the law and facts. These two sections of the Act prohibit the proposed participation of the barristers beyond the supporting role agreed upon by the Law Society and the defendants.

Justice Yamauchi dismissed the plaintiffs’ application in reasons dated June 24, 2011. Lameman’s appeal was heard by the Alberta Court of Appeal in January. The Court’s written reasons penned by Justice Côté dismissing the appeal were filed March 1, 2011.

Justice Côté identified the issue as whether a judge can override the prohibition in the Legal Profession Act which forbids acting as a barrister in a Alberta court without being a member of our society or a reciprocating society. He concluded a judge cannot.

It is elementary Canadian constitutional law that within their respective lists of legislative topics, Parliament and the provincial legislatures are supreme, and can enact anything, and the courts cannot override that.

The Court dismissed the plaintiffs’ arguments that:

Rule 2.23 (the McKenzie friend rule) of the Alberta Rules of Court permits the court to grant the requested right to advocate;

pro bono representation is not prohibited by section 106;

and access to justice is furthered by removing restrictions on unqualified practice.

The chambers and appellate reasons are reported at 2011 ABQB 396 and 2012 ABCA 59.

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